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Patrick, Esq., Lawyer

Category: California Employment Law

Satisfied Customers: 8811

Experience: Significant experience in all areas of employment law.

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I have been empoyed at my present job 12 yrs, with very good

Customer Question

I have been empoyed at my present job 12 yrs, with very good evaluations. Over the last year I have noticed an increase in critisim of minor things. After just getting "fed up" with the constant "picking" I finally when to my boss and said you seem unhappy with me in my present position. I then said that maybe she should think about it. She came back about 1 week later and said she was looking for younger people filling positions because 4 of her employees where nearing retirement age in the next 4-5 years. She then switch my job to per diem and gave a new employee ( less than 4 months on the job) my old position. I was just wondering if this is aganist the law to take me out of a full time position and give me a per diem position. With my seniority and good record. I also did not like her telling me she is looking for younger people. I am 63 and was planning on working 4 more years. I have been forced to retire because I could not live on an unknown amount of work. Excuse my spelling it is not what I do fr a living and I am very anxious

Good afternoon and thank you for entrusting me to assist you. My name is XXXXX XXXXX I will do everything I can to answer your question.

Absent a specific agreement to the contrary, employment in the state of California is "at will," meaning employers retain broad discretion to terminate or demote employees at any time for virtually any reason with or without advance notice.

Although the discretion afforded to employers through "at will" employment is broad, it is not unfettered, and employers cannot take any adverse employment action on the basis of a legally protected trait, such as race, religion, gender, or AGE.

In this case, your employer clearly stated that the reason they have been nitpicking you and have recently shifted you to per diem is because she is "looking for younger people." That is an unlawful reason to take any sort of adverse employment action against an employee, even when the employment relationship is otherwise "at will."

Rarely are employers so foolish as to bluntly state they are looking for younger people, and even more rare would be for your employer to make that same mistake once you have initiated legal action. Unless you have witnesses to the fact this statement was made or you have something else from your employer in writing to this effect, right now all you have is your testimony against hers, and I can assure you she won't admit to saying this once a lawsuit has been filed.

This does not mean you don't have a case (your testimony is perfectly admissible in court,a nd so is the fact that you were replaced with someone younger and with less experience), it simply means that you won't have the "smoking gun" evidence that could really be the most compelling evidence in support of your claim. If you have ANY way whatsoever to obtain additional evidence of your boss's prejudice toward your age, you would be extremely wise to get it.

With that goal in mind, it may be wise to an individual in your circumstance to send an email to your boss simply reiterating her position about you being too old for your job and "assuring" her that you don't plan to retire soon. If they respond to the email in a way that acknowledges this is their motivation, then you have written evidence of their intent. If they don't respond to the message at all, then you can argue that ignoring the message means they were impliedly admitting that the statements contained in your email were true.

In short, although employment in the state of California is "at will" absent an agreement to the contrary, it is absolutely illegal to terminate or demote an employee because of their age. Here, you have your personal testimony that your boss told you they were looking for younger employees, and you also have the fact that your boss filled your position with someone substantially younger and with less experience. This in itself is a decent case. However, you can strengthen your case by getting something in writing from your employer indicating a bias against you on the basis of age. If you can do that, you would be in an extremely strong position in terms of liability.

Given the compelling facts and the fact that you appear to be suffering actual financial consequences as a result of this discrimination, you would likely be well served hiring a local employment law attorney to assist you with your claim. I highly recommend CELA for referrals: http://www.cela.org/?page=4

Many attorneys represent employees in age discrimination suits on a contingency fee basis. If you don't know, a contingency fee arrangement is one in which the attorney receives a portion of the client's settlement or award as his payment, typically 1/3 of the total amount. If there is no recovery, the attorney does not get paid. The client never pays until the settlement or award is obtained (except perhaps to cover the filing costs for his claim).

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes and kindest regards.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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